Family of ejected Bills fan plans to sue for wrongful death

Posted by Mike Florio on June 23, 2013, 7:49 PM EST

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The smoke signals were noticeable last December. Now, it’s becoming obvious that a wrongful-death lawsuit will be filed on behalf of a man who died after being ejected from a Bills game in November 2012.

According to WGRZ, the family of David Gerken, Jr. has filed formal notice that it intends to sue Erie County. The claim will focus in part on the quality of lighting and fencing at a spot where Gerken fell into a creek and drowned. The suit also will apparently attack the decision to eject Gerken while intoxicated and allowing him to walk away from the stadium by himself.

Erie County owns Ralph Wilson Stadium, and Gerken’s family alleges that Erie County is therefore responsible for the safety of its patrons, even if they are tossed out of the building.

Complicating the situation for Gerken’s family is that Gerken called his brother, who also was attending the game. Gerken told his brother that Gerken had been ejected, and they agreed to meet at a nearby bar after the game.

If the case ever goes to trial, it will be difficult to get a jury to place responsibility on Erie County for Gerken’s safety after leaving the stadium when Gerken’s brother decided to stay and watch the game. The legal theory based on the lighting and fencing gives Gerken’s family a path around that predicament. It could make sense to focus on that argument only, and to avoid completely the idea that his brother decided not to leave the stadium with Gerken.

A jury possibly will have a hard time making anyone else responsible for Gerken’s death when his own brother chose staying at the game over protecting him. The best strategy for the family’s lawyers could be to do whatever is necessary to keep that fact out of the case.

Dealing with intoxicated fans presents a challenge for stadium operators, from a liability standpoint. A stadium that doesn’t eject a drunk fan, risks liability to someone they may injure in the stadium. A stadium that detains them until they are sober or until someone is available to accompany them risks a false imprisonment claim. And if, as the folks in Buffalo did, a stadium summarily ejects a drunk fan, the stadium operator faces a potential claim if something happens to them after they leave the premises.

I feel for their loss, but why is it anyone else’s problem when a person CHOOSES to get so drunk he can’t even care for himself. No, he didn’t deserve to die, but this was his own doing. My guess is that his brother was so tired of dealing with his drunken behavior (probably not the first time) that he figured he should just learn to deal with it.

Where exactly is the stadium located. I picture him being let out in the same place that deliverance was filmed, banjos and all. Maybe it was a canal, slightly different from a creek. It is Buffalo though. He must of sounded sober enough for his bother to tell him to meet at the bar. I don’t care what’s going on, if my brother needed me, Im there. Love you bro!

FinFan68 says:Jun 23, 2013 8:07 PM

The claims are ridiculous. The guy was drunk and did something to warrant getting ejected from the stadium. His own brother chose to stay. the drunk had an accident. Nobody is to blame but him. If he wasn’t rowdy, he wouldn’t have been kicked out. If he wasn’t drunk he probably wouldn’t be dead. The angle about the lighting is just a ridiculous ploy to assign blame where it doesn’t belong and hopefully gain some sort of profit. Do they know he actually fell and didn’t try to kill himself? Regardless, the death is tragic but the only guy to blame is already dead.

db105 says:Jun 23, 2013 8:08 PM

Only in America do we blame others for our own ineptitude.

hedleykow says:Jun 23, 2013 8:09 PM

I’m sort of surprised anyone in the family could stay sober long enough to file a lawsuit.

packhawk04 says:Jun 23, 2013 8:11 PM

So, guy gets drunk and kicked out of a game. His brother, knowing hes drunk and kicked out, allows his drunk brother to leave by himself. Brilliant.

This is an example of everything wrong with this country. Nobody accepts responsibility for anything. Everything is someone else’s fault. It is tragic that he died but who buys a ticket to a football game thinking they have a babysitter to make sure they get home safe? Having said all that he will likely win. Like the guy that slips an injures himself while robbing someone then suing the owner of the house. Sad.

Unless you’re being physically restrained and having alcohol forced down your throat, you’d never get my judgement in favor. If you choose to get drunk at a public establishment, then you assume the risk when that establishment kicks you out

Nobodies fault but his own. Should have been more responsible. The Bills were just trying to protect him from injuring other fans and himself in the stadium. But with the way things are in life I’m sure the family will win. As a tax payer in Erie County, I’m sure my taxes will go up to pay for the lawsuit.

This is just an example of how the legal system works in this country. No matter what someone does there will always be someone else to blame, as long as they have some money. I get drunk drive home and hit a tree, can’t sue the tree but maybe the car company and , the bar and the company that makes what you were drinking, it goes on and on.

whatchutalkinabouthillis says:Jun 23, 2013 8:16 PM

If you’re so drunk that you don’t notice you’re starting to walk into a creek, (which you should notice no matter how much lighting there is, then you are liable for your own behavior at that point. This isn’t kindergarten, no one should be following every drunk around making sure they aren’t doing stupid things. They might as well sue any person who saw him stumbling around and didn’t attempt to assist him, in the lawsuit’s terms, they’re as guilty as the County.

this is the biggest problem in our country. you can sue someone else for your own moronic stupidity and win. wow. honestly that seems more like natural selection at its finest there.

fdugrad says:Jun 23, 2013 8:26 PM

Went to a game in Seattle two years ago. It was the first game I have attended in person in many years. I swear, I have never seen that much drinking by individuals in my sixty years. I had two thoughts running through my mind. The first was how in god’s name are these folks going to drive home without several major accidents. The second thought was are there any limits on consumption of beer within the stadium? I know some people drink when they tailgate prior to the game however, the mountain of empty bottles inside the stadium was striking. I believe the responsibility should rest on the shoulders of deceased man for consuming that huge amount, however I wonder if the family might claim irresponsible over-serving or something along those lines as well as the above mentioned approaches?

hedleykow says:Jun 23, 2013 8:32 PM

The Bills should be grateful they aren’t being sued for wrongful faxing. Wrongful death should be a cakewalk.

hedleykow says:Jun 23, 2013 8:34 PM

Can’t the Bills just take the low road and contend in court that maybe the fellow isn’t dead, but just sleeping it off?

mikeyhigs says:Jun 23, 2013 8:36 PM

So from now on all creeks, streams, brooks, ponds, lakes, and puddles must be littered with street lights to prevent potential drunken drownings. What has taken us so long to realize this!?!

nnagi says:Jun 23, 2013 8:38 PM

this dude got so hammered that he was asked to leave the stadium, unfortunately he paid the ultimate price, nobody’s fault but his own…end of story

Stiller43 says:Jun 23, 2013 8:40 PM

You get so wasted that you get tossed out….youre SO wasted that you drown in a creek (how deep can a creek be?)…and its somebody elses fault…

OKAY

ianijm says:Jun 23, 2013 8:43 PM

It’s tough to blame the family … normally it’s some ambulance chaser who has been whispering in their ear for months about how “unfair” it is that their loved one is gone and how they need to make those responsible “pay” for their deeds so no one else will be “harmed by their gross negligence and despicable actions.”

By the time the shysters are done the family feels like they’d be doing a public disservice if they didn’t sure.

Not to open a can of worms here, but what they should sue Erie County for is serving beer to the point of intoxication to ANYONE or for serving beer at ALL. Add the NFL for good measure and that’s the lawsuit. Don’t worry all of you personal responsibilities conservatives may decry it but it will come it will come – may long live the social evolution of a society out of the dark ages into the light. See Gideon.

no reason to bash his brother on this site.all it says is that he called his brother and said he had been thrown out and meet up later.for all anyone knows the brother could have left the game right then.let him mourn in peace ppl.

I can’t stand wrongful death suits. I was selected for jury duty in a wrongful death lawsuit and let’s just say the family didn’t like what I had to say.

granadafan says:Jun 23, 2013 9:05 PM

Hate to say it but I’m on the Bills side.

commonsensedude says:Jun 23, 2013 9:05 PM

My condolences to the family for their loss but this is a clear cut case of personal responsibility. Nobody made him get drunk. Nobody made his brother stay to watch the game instead of getting him. Maybe the best thing for him would have been if he were taken into temporary custody. But the police have real work to do and are usually too busy to babysit drunk and disruptive fans. There is no case here.

blmonroe12 says:Jun 23, 2013 9:07 PM

At some point, self accountability is a factor. I’ve been to many stadiums and have always found my way around – drunk or sober. When you drink, you need to manage yourself or surround yourself with people that will help you manage yourself. Again, tragic loss, but at some point you are responsible for any outcome.

Why is this even a discussion about being drunk or not drunk? This is a case about the liability of the property owner to provide adequate lighting and security until their patron leaves their premises. As someone else said, if this had been a sober person who stumbled and fell, there would be no debate. If the property owners (namely Erie County and the Bills) wanted to eject this person, they should have escorted him COMPLETELY off the property assure no liability for injury, at which point, I would have turned him over to the police for public intoxication…he would have gone to jail and spent the night getting sober instead of drinking with the fishes.

So yes, Erie County was absolutely negligent in protecting a patron that they deemed unfit to sit in their stadium. Well, the parking lot is still their property, and they are still liable for personal injury or wrongful death unless (or up until) that person leaves their property.

Had they let this man get in his car and drive away and then he killed someone, they would be equally liable for wrongful death. Regardless of the man’s intoxication, Erie County is screwed on this one.

A family of losers indeed, any good judge would toss this case, this family, and their blood sucking lawyer out on their arses….but if the city of Buffalo, or the county detain intoxicated these individuals….why cannot the city or county open some sort of law enforcement sub station to use in cases such as this one?

1964bclions says:Jun 23, 2013 9:35 PM

Sorry… It is his own fault.

Was he wearing his Scott Norwood jersey when he slowly drifted to the right, and landed in the creek?

gcsuk says:Jun 23, 2013 9:36 PM

I pray that the family gets laughed out of court for this one, and somehow the Bills/Erie County find a way to make the family pay the legal fees for wasting their time.

The family should just say “We lost a member of our family”, NOT “How can we make a buck off this?”.

Sorry about the family’s loss. However, I think we all know whose fault this is.

tangerinediesel says:Jun 23, 2013 10:17 PM

I am sorry for the family’s loss, but I will also say they’re selfish and dumb. I’m a fan who likes having drinks before and during games, but I also make sure to be responsible. Thanks to irresponsible selfish people more and more rules come about which hinder my experience. I always have a dd or take the bus, but I can’t order a drink during the 4th because of some idiot in ny who was backed by bleeding hearts. How about this, you screw up big just once on alchohol and your id gets a big red stamp? Have any seller require id regardless of age and stop the idiots from buying. Guess that’s too simple and those of us who drink responsibly will keep getting punished thanks to idiots.

mondaymorningtasters says:Jun 23, 2013 10:27 PM

If this is the creek I am thinking of, its in some woods, how are you supposed to light that properly?

acdc84 says:Jun 23, 2013 10:30 PM

The family should be ashamed. The money they’re wasting on legal fees should have been put to a good cause.

What ever happened to people being responsible for their own actions??

mackcarrington says:Jun 23, 2013 10:50 PM

So drunk that he gets tossed out of the stadium and he wants to meet his brother in a BAR.

Additionally if they think that Erie County has deep pockets they are mistaken. Erie County is as broke as most municipalities in the country at this time. Good luck with that.

Well I would think along terms of any bar; letting a drunk customer leave and he gets into an accident, the bar and the bartender are liable. The same rules would apply here. Doesn’t matter if the dumb brother didn’t take his brother home. He’s gonna have to live with his mistake forever.

They sort of have a case, but I feel the bill will probably win it. Or they settle out of court.

desal2ds says:Jun 23, 2013 10:59 PM

I agree with most on here. While it is a sudden tragic death no one is to blame but the person who died and the people he was with at the stadium who let him leave. Buddy of mine got kicked out of Citi field was bombed but we all left with him. I’m so tired of the lawsuits

omniscient48 says:Jun 23, 2013 11:06 PM

They should never have let him walk out of the stadium and walk home (or to a bar) — they obviously should have let him drive to the bar.

You guys can’t be serious, right? Maybe you’ve just never had the pleasure of working in the service industry.

The people pouring drinks bear a decent share of the blame here. I don’t know how it works everywhere else in the US, but where I live we take classes that blatantly say if you overserve someone, you and your establishment will suffer should something bad happen.

The stadium gladly took his money on over priced beer, but then when he was having too much fun, they booted him out without so much as calling him a cab? At least if he’s that drunk you’d think they’d have him taken away in the back of a cop car. Bad deal for all parties involved.

msstiller58 says:Jun 24, 2013 12:03 AM

He had impaired judgement from the time he decided to walk into a stadium where the Bills were playing. But really, isn’t there some responsibility for a person to be responsible for himself? It’s sad he died. I bet his brother was equally impaired.

steelersarewhatfootballisabout says:Jun 24, 2013 12:41 AM

When are people going to finally accept that the disease of addiction is real? This person is responsible for facing the natural consequences to his actions, and unfortunately, he paid for it with his life. At the same time, legalities aside, there are people posting their comments about this article still thinking that this person chooses to be drunk. If you really understood the intricacies of the disease, you’d know that though a person can choose to learn to live sober one day at a time emotionally, mentally, and spiritually, it is still a very formidable task. If more people consistently attended Al-Anon and/or Nar-Anon, the counterpart to AA or NA, they would get a better grasp. In reality, the Al-Anon and Nar-Anon rooms can be very sparse in their attendance when they actually need to be overflowing with people that their lives had been touched by the pain of a family member, spouse, child, friend, coworker being addicted/alcoholic. But their frustration, powerlessness, and hurt is what they give into, and they let their pain come out in venomous verbal shots towards the person(s) struggling with the disease. Wake up people. It affects human beings all over the world regardless of their socioeconomic status. That’s why it’a disease, it doesn’t discriminate based on your skin color, education level, etc.

So said drunk is thrown out for his drinking , then wants to go to a bar to continue drinking. Then said idiot would get in his car and kill someone else on a DUI. He saved someone’s life by drowning in a creek. Let’s put more creeks in more stadiums, they save lives.

He was drunk. People need to realize that they are still accountable for their actions, especially if they are intoxicated.

defscottyb says:Jun 24, 2013 3:40 AM

Remember when that person sued McDonald’s (and won several hundred thousand dollars) because their coffee was too hot and she burned her mouth? Jeez, people will sue for anything. My personal opinion is this guy brought it on himself (hate to seem insensitive but it’s true). Also, I know from personal experience the horrors of alcohol abuse (for those who cannot handle it)… from myself, alot of my family members and friends as well have been greatly affected by this. I have lost family members and friends directly due to alcohol. I’m not saying it is all bad (for responsible drinkers and those who can handle it (ie: control their doses… yes doses because it is a drug). You wouldn’t just let someone do doses and doses of Heroin would you? So, why alcohol? Pretty sure alcohol causes more deaths a year than hard drugs (statistics anyone)? I’m not pushing for another prohibition (My former job for years was in the liquor industry and I do believe in responsible consumption, education and stopping underage drinking) but let’s face it… Alcohol is a DRUG and it can be just as devastating as any hard drug short term or over time.

How’s THIS for an idea… give everyone a breathalyzer before a beer purchase. If your over the legal limit then no more beer for you simple as that. But, some may be “offended” or claim it’s an invasion of their privacy. Just offering suggestions…

So if I go to a Bills game, get hammered, take home an ugly chick and get her knocked up, will Erie county pay me child support? It’s their fault…they should’ve stopped me from leaving with that mud fence!

hpb2167 says:Jun 24, 2013 6:27 AM

It’s called 3rd party liability…check it out. If he was served over the limit that establishment (stadium in this case) is held accountable, they should have cut him off.

So the guy gets drunk and has an accident. Who would the family blame if he had gotten behind the wheel ,drove off and killed someone else? This is the rare occasion where the dru k person lost the life and the innocent person didn’t . Who would the family try to get money out of in that scenario???

gtodriver says:Jun 24, 2013 8:27 AM

The lawsuit is for “poor lighting and fencing” of a creek.

Does that mean that we have to light and fence off every creek, stream, river, lake and ocean?

And maybe we need to do that for mud puddles too – as it is possible to drown in just a few inches of water.

I watched the video on the link in the story above. That creek was not on any walkway – you couldn’t even see the water from the paved area. A person would have had to walk into the wooded area for a distance to end up in the creek.

There should be no case here – but that doesn’t mean that a jury couldn’t choose to ignore reality and make an award for the grieving family.

Several people are making it a point to point out that the stadium was feeding him drinks to the point of intoxication.

However, the stadium does not serve after half time meaning that the stadium forces people to sober up for 2 or 3 hours before the game is over.

If this man was drunk to the point of not noticing running water then it probably wasnt $9 stadium beer that did it. My guess is that it had something to do with the 4 hours prior to the game that hit him hard.